Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 132 of Commissioner Cirkovic at Melbourne on 12 January 2021 in matter number C2020/6254.

[1] Mr Jeffrey Vassallo has lodged an appeal, for which permission is required, against a decision of Commissioner Cirkovic dated 12 January 2021[1]. In her decision, the Commissioner dismissed Mr Vassallo's application under s 603 of the Fair Work Act 2009 (Act) to vary or revoke her earlier decision of 15 November 2017, in which she determined a dispute brought by Mr Vassallo against his employer, Easitag Pty Ltd (Easitag), under s 739 of the Act and the dispute resolution procedure in the Electronic and Communications and Contracting Award 2010 (Award).[2] The Commissioner's determination of that dispute was that Mr Vassallo's correct classification was not grade 10, as Mr Vassallo had contended, but rather grade 4.

[2] Mr Vassallo's revocation application under s 603 was opposed by Easitag. It contended that the application was frivolous or vexatious and asked the Commissioner to dismiss the application under s 587(1)(b). Easitag submitted that Mr Vassallo's application under s 603 essentially asked the Commission to rehear the original dispute and reach a different conclusion. In this regard, not only had the Commissioner's 2017 decision determined the dispute, a Full Bench of the Commission had also dismissed Mr Vassallo's appeal from that decision.[3]

[3] Following the decision of the Full Bench, Mr Vassallo commenced proceedings in the Federal Court, in which he contended that he had been underpaid as a result of not having been correctly classified under the Award. On 23 June 2020 the court dismissed the application, noting that the outcome of the arbitration proceedings before the Commission had created a cause of action estoppel[4]. Mr Vassallo also sought to have the President of the Commission refer questions of law to the Court pursuant to s 608 of the Act. The request was denied.

[4] In her decision of 12 January 2021, the Commissioner concluded that Mr Vassallo's application under s 603 was groundless and vexatious, and dismissed the application under s 587 of the Act. She stated that Mr Vassallo's argument was in essence that his employment had not been covered by the Award, an argument that was contrary to the agreed position of the parties during the original proceeding. The Commissioner did not accept Mr Vassallo's contentions that Easitag had misled him into thinking that the Award applied. She rejected his contention that certain payslips had been fabricated, and that Easitag had sought to mislead the Commission. She considered certain additional evidence led by Mr Vassallo but found that its content did little to advance his argument. She concluded that the majority of Mr Vassallo's submissions simply sought to reagitate matters that were the subject of her original decision. The Commissioner stated that, had she not dismissed the application under s 587, she would nevertheless have declined to exercise her discretion to vary or revoke her 2017 decision.

[5] The Commission's powers in appeal under s 604 of the Act are only exercisable if there is error on the part of the primary decision-maker.[5] Further, an appeal may only be made with the permission of the Commission. The Commission is required to grant permission to appeal if it is satisfied that it is in the public interest to do so (s 604(2)). It may otherwise grant permission on the conventional grounds.

[6] Mr Vassallo has failed to establish an arguable case of appealable error for the purpose of permission to appeal. Neither Mr Vassallo's notice of appeal nor his written submissions disclose any arguable case of discretionary or legal error on the part of the Commissioner.

[7] We consider that the approach taken by the Commissioner to the consideration of Easitag's application under s 587 was entirely orthodox. Such applications generally face a high hurdle, however in the present case we consider that it was clearly open to the Commissioner to reach the conclusion that the proceedings were groundless and vexatious. She considered Mr Vassallo's additional evidence and found it of little assistance to his case. She heard Mr Vassallo's argument about why he sought now to resile from the agreed position that he was covered by the Award but was not persuaded by it. She did not accept Mr Vassallo's contentions that the employer had misled the Commission. What remained of Mr Vassallo's application was his fundamental disagreement with the outcome of the 2017 decision. In such circumstances, it was plainly open to the Commissioner to dismiss the application under s 587.

[8] The Commissioner stated that, if she were wrong to dismiss Mr Vassallo's application under s 587, she would nevertheless have declined to exercise her discretion to revoke or vary the 2017 decision. The same considerations that supported the Commissioner's decision to dismiss the application under s 587 also provided a sound discretionary basis for her to decline to exercise power under s 603. In particular, Mr Vassallo sought to depart from a position that had been agreed in the original proceedings, and, it must be noted, upon which the question posed by the parties for determination by the Commission was premised.

[9] We briefly address the various grounds in the notice of appeal. Grounds 1 to 5 submit that Easitag did not file and serve a F53 notice of representative commencing to act. But this does not speak to any error on the part of the Commissioner. By grounds 6 and 7 Mr Vassallo asserts that it was unfair for the Commissioner to allow Easitag to be represented by counsel under s 596, and that this decision was based on convenience, rather than the considerations in s 596. We reject these contentions. The Commissioner's reasons for decision in respect of Easitag's application under s 596 are set out in the Decision. They are not affected by error. Of course, this was a separate determination from the decision to dismiss the revocation application. But to the extent Mr Vassallo seeks to advance a contention that, because the Commissioner granted Easitag permission to be represented, he did not receive a fair hearing, we reject it. Our review of the materials confirms that Mr Vassallo received a fair hearing.

[10] Ground 8 of the notice of appeal asserted that Mr Vassallo's s 603 application was not an abuse of process, frivolous or vexatious. But the Commissioner reached a different conclusion, one that was plainly open to her. Ground 9 noted that the decision of Ross J Grabovsky v UPA[6] had set out the broad scope of s 603. Again, this ground does not speak to error. In fact, the Commissioner extracted relevant passages from Grabovsky in her decision, and clearly adopted them. She then set out ample reasons as to why she would not have exercised her discretion to vary or revoke her original decision.

[11] Ground 10 contended that the decision of Federal Court was 'contrary' to the decision of the Full Bench that had dismissed his appeal. During oral submissions, Mr Vassallo also contended that the court's decision had re-enlivened his original application. This is wrong. The court dismissed Mr Vassallo's application. As part of ground 10, Mr Vassallo also advanced a submission that his original application had been a request for the Commission to determine his appropriate classification, and that this request remained to be determined. This too is wrong. The Commissioner determined the dispute that was submitted to her by agreement of the parties, namely whether Mr Vassallo should be classified at grade 4 or grade 10. Mr Vassallo appears to regret the question he submitted for determination by the Commission, but this would be his error, not that of the Commissioner. Ground 10 also contended that the original decision was based on false or incomplete information. However, the Commissioner considered Mr Vassallo's arguments in this regard. She was unpersuaded by them. Neither are we. Finally, in oral submissions, Mr Vassallo said that the 2017 decision was based on perjury. We find no basis whatsoever to sustain this contention. An allegation of perjury is a grave matter and should not be made without a proper basis.

[12] We see no grounds to grant permission to appeal, either in the public interest or on the conventional basis. Mr Vassallo has not made out an arguable case of error. The Commissioner's decision is not attended by doubt such as to warrant reconsideration. It does not manifest an injustice.

[13] Permission to appeal is refused.

[1] [2021] FWC 132.

[2] [2017] FWC 5961.

[3] [2018] FWCFB 501.

[4] [2020] FCA 875.

[5] See Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17].

[6] [2015] FWC 5161

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